Framing a Great Idea

Cody Hoesly

Near the end of the legislative session, the legislature put forward the idea that the law regarding referendums should be changed.  That idea was a great one, but it died due in part to poor framing of the issue.  In the future, better framing, coupled with objective reporting, can help the idea become law.

First things first.  A referendum is not like a referral or an initiative ballot measure.  With an initiative, regular citizens put an idea on the ballot.  If voters like that idea, they vote yes; if they don't, they vote no.  The point is that the idea becomes law -- and the status quo changes -- only if the initiative's backers convince more people to vote for their idea than against it (or not at all).  The same is true for referrals, when the legislature puts an idea on the ballot.  Again, a yes vote changes the status quo and the law.

Referendums work differently.  With a referendum, the legislature has already decided to change the law using the usual legislative process, but certain citizens don't like that change, so they put the change on the ballot.  Unlike with an initiative or referral, the status quo with a referendum is change; absent the referendum, the law would change in line with the legislature's wishes.  Accordingly, voters who want to reverse the change -- and alter the status quo -- should vote yes to do so.  Those who want to keep the change -- and the status quo -- should vote no (or not at all).

Unfortunately, our current system is the opposite when it comes to referendums.  Currently, voters who like the legislature's changes must vote yes -- that is, vote for the status quo.  Voters who vote no or don't vote at all vote against the legislature's changes -- and the status quo.  That is backwards.  That is also why the legislature was right to try to allign the yes/no vote protocol with the protocols for initiatives and referrals.

The idea failed, however, in part due to poor framing.  Instead of framing the issue as outlined above, the legislature allowed the press and the anti-tax crowd to mischaracterize it in Orwellian terms.  So Jeff Mapes of the Oregonian ran a headline stating "Democratic leaders back off 'yes is no' change" and the AP/ Statesman-Journal ran this headline:  "Democrats: What does 'yes' or 'no' mean?"

Those characterizations are inaccurate because they set up a superficial straw man and then knock it down by implying a totalitarian motive.  No one is trying to say "yes is no."  The whole question is whether a yes vote should change the status quo or keep it.  With initiatives and referrals, a yes vote says yes to the status quo; that should be its meaning in the referendum context also.  Any reporter who continues to mischaracterize the issue as described above may be guilty of biased reporting.

The other problem with the framing is defining what the status quo is with referendums.  As I have explained above, the status quo is the legislature's vote to change the law.  After all, we live in a representative democracy; ballot measures are the exception to that rule.  When the legislature votes to change the law, that law should be changed, unless the people who don't like what their democratically-elected representatives voted for can convince enough of their peers to overide the legislature.  The referendum is like a veto; the people who want it should have to vote for it.

Opponents will argue that, because they have collected the signatures to force a referendum, the status quo is not the legislature's vote to change the law, but rather the law before the legislature's vote -- and those who agree with the legislature should bear the burden of convincing voters to enact it.  The problem with that argument is that it belies the truth about referendums.  Under the current system, those who oppose a legislative vote can stir up the process by gathering signatures to force a referndum and then relying on non-voters to count as "no" votes, thus killing the law without having to campaign for it.

That's cheap.  If someone wants to stir the pot, they should have to stir it all the way.  I hope the legislature returns to this issue in 2010 and sets the matter straight once and for all.

Comments

  • Kurt Chapman (unverified)
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    The plural of referendum is referenda.

    Cody, altogether a great piece....until your conclusion. Your picture, if recent, indicates your youth. Perhaps you've not heard the saying that timing is everything. That is exactly the pervasive understanding of the democrats move to change the language for referenda towards the end of the last legislative session.

    Once pushing through the largest set of tax increases in state history; and getting wind of the signature gathering process the democrats THEN decided that the existing process might be confusing. Confusing or not (and Steve Novick's poor apologies aside), the sole purpose of initiating this change at this time was to further confuse the process and thwart efforts giving a vote against some of the recent tax increases.

    I welcome an honest and complete debate of the proposed language changes to referenda in future legislatures when there is not the specter of a looming vote to undo recent tax hikes.

    H.L. Menchen; "Government is a broker in pillage, and every election is sort of an advance auction on stolen goods." A cynical quote for sure, but it seems to apply to Salem this past session.

  • Phil Philiben (unverified)
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    I like Kari's idea of instead of yes/no replace it with option A or option B. No matter what is done with initiative process the elephant in the room is big money and out of state money. We need a Supreme Court that rules that money is property not speech.

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    Cody

    I almost ended up testifying on this one!

    I agree with the general thrust of your argument here. In a referendum, the citizenry is being asked to affirmatively overturn a legislative vote. A no vote says "no, I do not want to over turn the legislature's decision."

    Also, I am concerned that the current system takes advantage of the tendency on the part of citizens to vote "no" when they are uncertain or uninformed. A "no" vote for a referendum or initiative says "no, leave things as they are"--which is OK for an uninformed vote.

    BUT all that being said there are two things for you to consider:

    1) The legal argument you make about the status quo is wrong. Once a piece of legislation goes in front of the voters, it no longer has the force of law. It is as if it was never passed. So I am not sure that you can say that the "status quo" is to keep the law in place.

    2) The problem with changing the referendum is that it makes one part of the citizen's vote process the opposite of the other two. A "yes" for an initiative and referral means "yes, pass this proposal." A "yes" for a referendum means "Yes, overturn the Legislature's decision" or alternatively "Yes, I am making a negative statement about this proposal."

    This part of your post I don't understand: Under the current system, those who oppose a legislative vote can stir up the process by gathering signatures to force a referndum and then relying on non-voters to count as "no" votes, thus killing the law without having to campaign for it.

    Do referendums require a certain percentage of turnout, a'la a double majority? If not, then your statement about non-voters counting as a "no" is inaccurate.

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    Kurt, I believe both forms of the plural are permissible, but I see your point on the 2010 vote -- even if 2010 is not the right timing, I hope 2011 is.

    Paul, you're right about the italicized sentence -- I meant to describe voters who vote "no" when uncertain but typed the wrong thing. Sorry.

    As to your bullet points, however, I want to clarify that, first, I was not making a legal argument about the status quo, but rather a practical one. At any rate, whatever the law says now about the effect of forcing a referral on the efficacy of the legislature's vote, that, too, can be changed.

    And I see the point in the second bullet point, but I think it misses the bigger picture. I view the referendum not as a vote on the bill, but as a vote on vetoing the bill -- a yes vote should be for the veto. A rough comparison could be made to the 21st Amendment overturning Prohibition: If it had been referred to the voters, the question should have been "Do you vote to overturn the 18th Amendment?" not "Do you vote to retain the 18th Amendment?" One could imagine a similar scenario involving the overturning of Measure 36 (one man, one woman).

  • Boats (unverified)
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    Referenda do not place the public in the shoes of the governor, "vetoing a bill," rather the public, via the signature gathering process, has removed the topic from the thumb sucking legislature, returning the suspended law to the status of a bill as it stood all engrossed on the cusp of a legislative vote, to be judged yea or nay.

    Referenda are not about undoing duly enacted laws. Referenda suspend the enactment of those laws until their fate is decided by the citizens using their self-executing legislative power.

    These infantile attempts to co-opt the more desirable "NO" option to get their recent tax increases by a proposed referendum are what is Orwellian, betraying as they do, either a profound ignorance of how the system works in this state, or even worse, a deep contempt for the intelligence of the voters.

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    Which reminds me of another thing. This change should not be limited to tax measure referenda; it should apply to all referenda.

  • Kurt Chapman (unverified)
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    Cody, I wasn't sure of the plural so looked it up. It wasn't admonsihment or correction. I also have no problem with examining the language and making the intent clearer if need be. 2011 is far better timing.

  • PeteJacobsen (unverified)
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    I see this just the opposite of Cody's analysis. The current way of voting makes most sense to me in terms of understanding the meaning of my vote.

    Because this does seem like a viewpoint issue, it seems too strong a statement to suggest that reporters seeing a different viewpoint "may be guilty of biased reporting".

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    We can solve all this confusion - and a bunch of other confusion - by going with Option A and Option B.

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    Let me second Kari's "Option A vs Option B" idea. If we are going to change the process, let's really change it and get away from a "yes vs no" vote.

  • Steve Buckstein (unverified)
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    Just like No is the desired high ground in a Yes - No election, I assume A would become the desired high ground in an A - B election. Face it, this fight was all about political advantage, and in this case those opposed to new taxes came out on top (desired over ending up on the bottom).

  • Brian Wagner (unverified)
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    This discussion reminds me of an article I wrote for the Portland Trib five years ago ... different angle on the issue, but still thought I'd throw it out there to add a stronger concern about the whole referendum process:

  • Brian Wagner (unverified)
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    HTML doesnt like me:

    2004 Trib article

  • LT (unverified)
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    Kari is right. Most people reading Cody's excellent post would have their eyes glaze over before they finished reading.

    But what interests me is how successful AOI and Walker will be in collecting signatures. No matter how much money they raise, I find it hard to believe that everyone who voted for Democratic candidates in 2008 can be suckered into signing petitions.

    Not to mention the question of validity rate. If the petitioners hire sloppy signature gatherers, it will take more signatures to make sure they have enough valid signatures.

    Which is why I loved that comment Speaker Hunt made after Sine Die about how there is a different electorate than in 2003 (don't recall the exact quote, but called his office and suggested he send the quote out in his next email).

    Signature gathering can be hard work, esp. if people who encounter signature gatherers ask "OK, how would YOU balance the budget?".

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    Steve B, easily handled: randomly switch the position of the described positions on the ballot.

    The ballot is op-scanned anyway.

    This is not at all without precedent; some states vary the ordering of the candidate names because research has shown that the first name/position receives an statistically greater number of votes even if all other characteristics of the candidate are controlled for in an experimental setting.

  • Kurt Chapman (unverified)
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    LT said: I find it hard to believe that everyone who voted for Democratic candidates in 2008 can be suckered into signing petitions.

    Kurt Chapman response: Easy, I know several business owners who voted anti republican (i.e. democrat) in 2008. I know several that actually voted FOR Obama. Many will vote their own self interest when/if the corporate tax comes up. several would have been OK with a temporary tax hike to help out. Several believe that the democrats overstepped and mistook a vote for democrats in November 2008 as a wholesale endorsement of the left side of the democrat agenda.

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    This bill was a lousy idea, not a great one.

    Cody argues "voters who want to reverse the change -- and alter the status quo -- should vote yes to do so."

    This is a sleight of hand that substitutes a sophistical definition of "the status quo" for what most people plainly understand:

    Voters who want to change existing law should vote "yes."

    I believe most voters interpret the question that way, or as "Do you agree with what the Legislature voted to do?" or "Do you agree with the proposed law?" If they do, they vote "yes," if they don't they vote "no."

    This is the proper way for matters to stand. Votes in an initiative, referendum or referral all have the same consequence.

    A "yes" vote majority produces a new law, legislated by the people acting as ultimate legislature. A "no" vote majority defeats the proposed new law.

    Making referenda votes different is what will confuse matters and voters.

    <hr/>

    Further still, I believe the Voters' Pamphlet explains quite clearly what the consequences of a "yes" or "no" vote are.

    <hr/>

    There is no evidence of problem here that requires correction.

    Can anyone cite a referendum under current rules (or similar rules in another state) where there is evidence that the result was other than what the voters intended? Where because of confusion the voters overturned a law that a majority meant to support, or supported a law that a majority meant to overturn?

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    The proposed change really is inexplicable. If it weren't, it wouldn't be so hard to explain.

    Sorry to say it Cody, but this "framing" isn't helping your cause.

    First, what the legislature passed is not, in law or practice, the status quo once a referendum has been called.

    What the hell can it mean for a law to be the law in practice but not the law in law? What is a law in practice except actual law? Your defense, I fear, is just nonsense.

    This goes back to the basic principle of initiative, referendum and referral: that the people as a body are a superior legislature to the elected legislature. Like it or not, argue whether it should be or not, that is the constitutional position in Oregon today.

    Second, because the endless repetition of the Latin status quo, your new framing is nearly incomprehensible. But you have to use it to perform the sophistry of substituting status quo for the common sense "existing law."

    If you are looking for a framing that will be clear because you believe people will support the change if they understand it clearly, you have not found that framing.

    However, for the reasons stated in my previous comment, I think that expectation probably is wrong. When people understand the proposed change clearly, I think most of them will oppose it.

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    Cody is legally wrong. A "yes" vote on a referendum does change existing law (just like a "yes" vote on a referral or an initiative). That is because the law passed by the Legislature is nullified by the submittal of sufficient valid signatures within 90 days of the end of the session, and the law never takes effect until and unless it is approved by voters in a referendum. Thus, just like with initiatives and referrals, a "no" vote on a referendum preserves the status quo.

    I explained this repeatedly in the earlier thread on this subject.

    The problem faced by some liberal groups is that they have campaigned ceaselessly for the past several years to urge people vote "no" on all measures. Now they are learning that the sword has two edges.

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    Cody is further wrong in this statement: "Under the current system, those who oppose a legislative vote can stir up the process by gathering signatures to force a referndum and then relying on non-voters to count as "no" votes, thus killing the law without having to campaign for it."

    There is no such thing as "nonvoters to count as `no' votes" in any referendum. A referendum is passed if there are more "yes" votes than "no" votes, period. Cody is thinking of "double majority" requirements, which do not apply to referenda or initiatives. Those apply only to legislative referrals to voters of measures which increase property taxes at special elections.

  • Julie Jenkins (unverified)
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    <h2>Lie down with dogs, get up with fleas. Why debate?</h2>

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